Sending the medical certificate by fax is a valid method of notification of illness by the employee, as it is expressly provided for in the company’s rules.

The Supreme Court, in its order no. 25661 of 25 September 2024, held that the dismissal of an employee who communicated his illness via fax, while on holiday abroad, was unlawful. The Court stated that this method of notification was in accordance with the company’s rules. Furthermore, the Supreme Court emphasized that the notification of illness could also take place in a form other than by registered letter, if provided for by the company’s rules.

Employment relationship – Notification of illness – Method of transmission – Medical certificate – Fax as valid instrument – Company rules – Presumption of receipt – Documentation of transmission – Employee’s conduct – Illness abroad – Dismissal – Valid transmission

Notification of illness to the employer may be validly effected by fax if that method is expressly provided for in the company’s rules. In such circumstances, the fax is deemed to have been correctly received by the employer if the employee can prove, by means of transmission reports, that the notification was successful, even if there is no record on the company’s servers. The employee’s conduct in notifying the employer of his illness from abroad, although potentially negligent, will not constitute a valid reason for dismissal unless it can be shown that the employee was aware of the failure of the transmission.

The facts of the case

The case examined by the Supreme Court concerns a dismissal for just cause due to “unjustified absence of more than four days” against an employee who became ill while he was on vacation in Romania. The employee argued that his absence was justified, stating that he had contracted the illness during his vacation and, therefore, had sent the medical certificate by fax, in accordance with the company’s rules.

Following the dismissal, the employee challenged the measure before the Court of First Instance of Treviso, (Italy) requesting the repeal of the dismissal due to the non-existence of the alleged infringement.

The main argument in the company’s defense consisted in the alleged inadequacy of the illness notification. Specifically, the company claimed that the employee did not respect the procedures set out in the company’s rules, which, according to the company, required both a more “formal” notification, typically through registered mail, and a telephone call notice. The employee, however, disagreed, stating that sending a fax was an acceptable method according to the rules, and that the certificate had been transmitted correctly, as evidenced by the transmission report.

The various degrees of judgement

During the preliminary hearing, the Court of First Instance of Treviso upheld the employee’s appeal, declaring the dismissal null and void and ordering his reinstatement. Additionally, it ordered the company to pay an equal compensation «to the employee for the period from the date of dismissal until his actual reinstatement, based on his gross salary».

Against the Court of First Instance’s decision, the Company brought the case before the Court of Appeal of Venice. The latter partially upheld the appeal, confirming the unlawfulness of the dismissal and the employee’s reinstatement, re-determining the compensation to twelve months’ salary.

The Court stated that Article 40 of the applicable national collective bargaining agreement provides for unjustified absence of four days or more as grounds for disciplinary dismissal, including in the definition of unjustified absence also late communication and late sending of the medical certificate.

Moreover, according to the company’s rules, it was the employee’s precise duty to notify the employer on the day of the event, in addition to sending the medical certificate.

Furthermore, it turned out that the employee had not documented any impediment justifying the failure to notify; in fact, the only text message sent was dated days after the beginning of the disputed absence.

A final significant aspect examined by the Court of Appeal concerned the employee’s failure to allege a possible impediment to telephone communication. On this point, the Court of Appeal noted that «the employee has not demonstrated an impediment of such gravity as to radically exclude the possibility of a prior serious attempt to contact the company director». Finally, it stated that «the employee has behaved in a formally obsequious manner in relation to contractual obligations, but he has only minimally fulfilled them».

Consequently, the Court found that the employee had failed to comply with the obligation to notify the employer by telephone, in breach of the company’s rules and of the duty of care required in the context of a subordinate employment relationship.

The company appealed to the Supreme Court on five grounds against the decision of the Court of Appeal.

The first ground of appeal was based on the alleged nullity of the judgment on the ground that the Court of Appeal had made contradictory and irreconcilable statements. In particular, the judges of the appeal had «first affirmed that the employee’s conduct was neither linear nor based on the essential rules of diligence required by the employment relationship» and then « excluded the existence of a just cause that allowed the dismissal».

The Court of Cassation rejected the aforementioned argument, stating that the contradiction was only apparent, as the Court of Appeal had considered sufficient both the method of transmission by fax, as provided for in the company’s rules, and the proof of its receipt in the transmission report submitted by the employee at the trial, since a similar fax had been sent to the INPS and duly received by it.

In its second plea, the company challenged the Supreme Court for finding that fax transmission was “appropriate”.

The Court of Cassation held that the plea was not grounded because «fax is a method provided for by the company’s rules» and «the law does not exclude equivalent methods according to the forms of use that may be provided for by the company’s rules».

In its third ground of appeal, the company argued that the Court of First Instance of Treviso had contradicted itself by «first stating that it was only during the trial that the employer was able to verify the content of the fax, i.e. the medical certificate, and then stating that there was no evidence of falsification or alteration of the message».

Also in this case, the Court of Cassation rejected the company’s arguments, stating that the fax was a valid means of communication, as provided for in the company’s rules, so that «the knowledge of the addressee is irrelevant for the purposes of the fact that is the subject of the disciplinary complaint».

By its fourth ground of appeal, the company challenged the local Court’s presumption of the correct receipt of the fax based on the only available information concerning the actual sending of the fax.

The Court of Cassation stated that «the employee’s obligation ends with the confirmation of the successful transmission of the fax», thus confirming that «the employee’s conduct is therefore exempt from liability».

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Decree-Law No. 131/2024, published in the Official Gazette on 16 September and in force since 17 September, introduced important changes for employers in the management of fixed-term contracts. This measure, known as the “Decreto Salva Infrazioni”, meets the request of the European Union – which started an infringement procedure against Italy – to align national legislation with the EU Directive 1999/70/EC on fixed-term work. 

In particular, the EU Commission found that the provision of a minimum and, especially, a maximum payment to the worker was not an effective deterrent against the abuse of fixed-term contracts. 

The Decree in question has therefore amended Article 28, paragraphs 2 and 3 of Legislative Decree No. 81/2015 (“Jobs Act”), introducing significant changes regarding the compensation indemnity for damages in case of fixed-term contracts declared unlawful. 

Compensation indemnity exceeding 12-month instalments 

One of the most impressive aspects for companies concerns the extension of the judge’s power to set compensation indemnity exceeding 12-month instalments in cases of unlawful fixed-term contracts. Previously, when a fixed-term contract was converted into an open-ended contract, the employee was entitled to a lump sum indemnity ranging from 2.5 to 12-month instalments of the last reference salary for calculating severance pay. Now, as a result of the amendment introduced, the employer may be sentenced to pay significantly higher sums if the employee proves greater damage, such as an extended period of litigation. 

Abrogation of the limit of 6 months of payments 

Another important change is the abrogation of the 6-month limit on indemnity due to workers in the case of fixed-term contracts that have been declared unlawful, a limit that previously applied in the case of collective agreements that provided for procedures to stabilize fixed-term workers. Under the previous legislation, companies could benefit from this cap, reducing the economic risk associated with any disputes. 

Implications 

The amendments introduced by the “Salva Infrazioni” decree imply a significant change in the management of human resources for employers. In fact, they will have to pay more attention to complying with the rules on fixed-term contracts, avoiding abuses and ensuring the correct application of the rules in force. As a result, companies will have to adopt a more prudent and rigorous strategy in the use of fixed-term contracts in order to reduce the risk of expensive claims. 

Other related insights: 

• The “Salva infrazioni” Decree is in Force – Main changes on the regulation of fixed-term contracts in the private sector

The Supreme Courte, by its decision no. 23852 of 5 September 2024, examined the question of the dismissal for just cause of an employee who, during a period of illness, participated in a football tournament already scheduled, thereby breaching his obligations of diligence, loyalty and fairness, thus jeopardising his recovery or return to work. The employee appealed the dismissal, arguing that the participation in a football tournament during his sick leave did not breach his contractual obligations. The company claimed that the employee had simulated illness in order to participate in the competition, thereby jeopardising his recovery and breaching the principles of fairness and good faith. The Supreme Court rejected the employee’s claim, stating that “the performance of physical activity during the period of illness <<…>> constitutes a breach of the contractual obligations of diligence and loyalty”. Furthermore, it stated that: “<<…>> sporting activity, by its very nature, may affect or delay recovery or the return to work”. Perhaps because of the particularly serious nature of the employee’s conduct, the judgment in question represents an important decision in a matter in which the case law has too often shown a tendency to tolerate conduct that raises doubts as to the employee’s true state of illness

On 16 September was published in the Official Gazette the Decree-Law no. 131/2024 (i.e. “Decreto Salva Infrazioni”) – in force since 17 September – which also intervened on the regulation of fixed-term contracts through which the European Union requested Italy to align Italian legislation with EU Directive 1999/70/EC on fixed-term work.

The “Salva Infrazioni” decree amended Article 28, paragraphs 2 and 3 of Legislative Decree No. 81/2015 (i.e. “Jobs Act”), introducing significant changes regarding the compensation indemnity for damages in case of fixed-term contracts declared unlawful. 

Pre-existing regulation:

• In cases of transformation of a fixed-term contract into an open-ended contract, the employee is entitled to a lump sum indemnity ranging from 2.5 to 12-months’ salary of the last reference salary for calculating severance pay.

The maximum limit of the indemnity is reduced to 6 months’ salary in the case of collective agreements that provide for procedures to stabilize fixed-term workers.

Amendments introduced by Decree-Law No. 131/2024:

• The Decree gives to the judge power to set compensation indemnity exceeding 12-months’ salary in cases of unlawful fixed-term contracts,
• Paragraph 3, which allowed the limit of the indemnity of the 6 months’ salary, is abolished.

“The use of personal data is not subject to the obligation to inform and obtain the prior consent of the data controller when personal data are collected and processed in the context of legal proceedings”. This is “provided that the data are inherent to the area of business and litigation that justifies their collection, that they are not used for purposes other than those of justice for which they were collected, and that the authorizing measure is in place”.

This has been stated by the Court of Cassation, decision no. 24797/2024 of 16 September 2024.

In detail, a few employees – each in the context of their own dispute over matters relating to their employment relationship – had submitted to the court a recording of a conversation that had taken place some years earlier between one of their colleagues and some executives of the employer company. The recording was made without the knowledge or permission of the participants. The executives involved claimed the matter to the data protection authority, which rejected the claim on the assumptions that the recording, and thus the related processing of personal data, had been carried out for purposes related to contesting charges in the context of the employment relationship. At this point, the executives appealed to the ordinary courts.

In addition to the well-established national case-law on the subject, the Supreme Court also refers to the Court of Justice (EU) which, in its judgment of 2 March 2023, C-268/21 – Norra Stockholm Bygg AB v Per Nycander AB, made it clear that “where personal data of third parties are used in a case, it is for the national court to weigh, in full knowledge of the facts and in accordance with the principle of proportionality the interests concerned” and  “that assessment may, where appropriate, lead him to authorize the full or partial disclosure to the other party of the personal data thus disclosed to him if he considers that such disclosure does not go beyond what is necessary to ensure the effective enjoyment of the rights which individuals derive from Article 47 of the Charter”.

The Court of Cassation also remainds that “Articles 17 and 21 of the GDPR make it clear that, in the balancing of the interests involved, the right to defend oneself in court may be considered overriding over the rights of the data subject to the processing of personal data”.